Hari Prasad Tiwari vs Saimuddin and Others

Heard the learned counsel for the appellant Sri Vinay Misra, Sri Ravi Chakravarti holding brief of Sri A.M. Tripathi for respondents 2 to 4 and Sri Ajmal Khan for the contesting respondent No.1.

Learned counsel for the appellant submits that the order under challenge passed by the learned Single Judge (D.V. Sharma, J.) is one more order of the same nature, which is being passed, disposing of the writ petition on first day with the direction that the representation be decide and till then, the impugned order dated 16.7.2008 shall not be given effect to.

His submission is that though the appellant was impleaded as opposite party in the writ petition and that the relief, which was claimed was to affect the appellant, in case it was granted in the writ petition, but without issuing notice to the opposite parties, the learned Single Judge has disposed of the writ petition finally on day one.

His further submission is that in pursuance of the High Court''s order 23rd May, 08 passed in Writ Petition No.2851 (S/S) of 2008, the petitioner assumed charge on 16.7.2008 and the learned Single Judge has passed an order that the order dated 16.7.2008 shall not be given effect to, which means that taking of the charge by the petitioner shall not be given effect to, as a consequence of which, the rights of the petitioner are adversely affected, though when the charge has already been taken, there was no occasion for the respondents to claim any relief for not giving effect to the charge.

Learned counsel for the respondent No.1 Sri Ajmal Khan has made in half hearted attempt to defend the order by saying that the learned Single has not decided any issue against the opposite party, viz. the appellant, therefore, no right of any party has been affected, and every person has a right to put his case before the concerned authority.

We fail to appreciate the aforesaid argument.

In case any relief is sought for, against the opposite parties already impleaded in the writ petition, the same cannot be granted nor the petition can be disposed of finally without issuing notice to the concerned parties and without giving reasons for setting aside the impugned order or keeping it in abeyance, may be till disposal of the representation as directed by the learned Single Judge.

It is appropriate to mention here that for giving opportunity to make a fresh representation, cannot be the normal course of deciding the writ petition when a grievance is brought before the court for its redressal. Direction for making representation, ordinarily can be made if there is a provision for statutory representation or there is any legal obligation upon the concerned authority to decide the representation. In the absence of such requirement, the Courts would be reluctant in disposing of the writ petitions by making an order for getting the representation decide. Of course, the Courts have inherent power to ask the parties to make a representation, in case they find it fit, but in a matter where the rights of either parties can be affected, without affording such an opportunity, the order cannot be normally passed.

In the case of Hazi Rais v. State of U.P. and others, 2006 (24) LCD 1629, a Division Bench of this Court took note of the judgment passed in Writ Petition No.8642 of 2003; Rajendra Singh v. State of U.P. and others, decided on 31.7.2003, wherein it has been held that ''without considering the merit of the case, the Court should not issue a direction to decide representation to any of the authorities for the reason that under the garb of getting the representation decided, the party may succeed in getting adjudicated a time barred claim, may be by an authority having no competence or by deciding the representation an order may be reviewed through remedy of review is not provided under the Statute. In the said case, under the garb of getting the representation decided, the party wanted the authority under the U.P. Motor Vehicles Taxation Act, 1997 to review its assessment''.

In the case of A.P.S.R.T.C. and others v. G. Srinivas Reddy and others, JT 2006 (3) SC 189, the Apex Court made strong comments against issuance of direction to the authorities to decide the representation as under the garb of deciding the representation, time barred claims were entertained by the authorities. The relevant portion of the judgment is as under:

�We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ''consider'' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ''consider'' the matter afresh. Be that as it may.

There are also several instances were unscrupulous petitioners with the connivance of ''pliable'' authorities have misused the direction ''to consider'' issue by Court. We may illustrate by an example. A claim, which is stale, timebarred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to ''consider'' and dispose of the representation. When the Court disposes of the petition with a direction to ''consider'' the authority grants the relief, taking shelter under the order of the Court directing him to ''consider'' the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of the judicial review, have interpreted or understood the order ''to consider'' as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting underserving relief, in pursuance of orders to ''consider'', may be on account of ignorance, or on account of bona fide belief that they should grant relief in view of Court''s direction to ''consider'' the claim, or on the representation and the authority deciding it. Representations of daily wagers seeking regularization/absorption into regular service is a species of cases, where there has been a large scale misuse of the orders ''to consider''.�

In the case of Employees State Insurance Corporation v. All India I.T.D.C. Employees Union and others, JT 2006 (4) SC 26, the Apex Court observed as under:

�We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ''consider'' the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ''consider'' the matter afresh.�

In the instant case, if the appellant had already joined on 16.7.2008 in pursuance of the Court''s earlier order, the petition could not be disposed of finally by putting the said joining in abeyance.

We, therefore, without entering into the merits of the claim, since the writ petition has been disposed of finally and that too by keeping the impugned order/action in abeyance without issuing notice to the contesting appellant and without affording any opportunity to him, set aside the order passed by the learned Single Judge and remit the matter to the learned Single Judge for deciding it afresh.

The special appeal is allowed. No roder as to costs.

(Appeal allowed)